March 31, 2003

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On April 1 the Supreme Court will hear oral arguments in the University of Michigan affirmative action cases on whether to overturn the 1978 Bakke decision and ban consideration of race as a factor in university admissions. An impressive display of support for diversity in higher education has come from dozens of corporations, universities, members of Congress and even former military brass, who have weighed in with friend-of-the-court briefs.

At stake is the freedom of the University of Michigan and other universities to use carefully tailored means to achieve a diverse student body. Standing against them are the Bush Administration and a handful of misleadingly named organizations with which the Administration has close ties, such as the Center for Individual Rights (CIR), Linda Chavez’s Center for Equal Opportunity (CEO), and Ward Connerly’s American Civil Rights Institute (ACRI). Key right-wing foundations have bankrolled these groups for the past dozen years. The CIR, which brought the Michigan cases, is also responsible for the notorious Hopwood case, which overturned affirmative action throughout the US Fifth Circuit. Bush’s Solicitor General, Federalist Society veteran Theodore Olson, argued Hopwood on behalf of CIR.

Determined not to further antagonize minority constituencies, whose votes Karl Rove covets, the Bush Administration’s brief argued that the answer is to bring in so-called “percent solutions,” under which fixed percentages of top students are admitted from a state’s high schools. Olson followed White House tactical instructions for advancing the agenda of the right and opted for percent solutions in the friend-of-the-court briefs he submitted on the Michigan case.

Leaving aside the dubious value of these solutions (which have been devastatingly criticized in two recent Harvard Civil Rights Project reports), they may be only a way station on the road to the judicially engineered resegregation of American business and education. CEO is already targeting these “solutions”–which are in effect in Texas, Florida and California–as race-based and therefore unconstitutional. The antidiversity industry is also targeting the outreach efforts that Harvard researchers determined was responsible for maintaining minority enrollments.

The large number of amicus briefs by mainstream institutions in support of the University of Michigan’s position is certainly to be welcomed. But it may be premature to cheer too loudly, if the recent history of another, rather ugly side of this nationwide debate is any indication of what is to come. Over the past few years there has been a determined effort to intimidate the leaders of educational institutions, municipalities, corporations and other entities that have affirmative action programs by sending letters and staging publicity stunts containing veiled threats of costly “reverse discrimination” lawsuits, and even personal liability suits.

It may seem implausible that the well-connected and influential leaders of such powerful institutions would be vulnerable to pressures of this type or would cede core principles and commitments because of them. But corporate and university board members are aware that such lawsuits may be increasingly difficult to win, even if the High Court holds fast to Sandra Day O’Connor’s opinion in a previous Supreme Court decision that the consideration of race is constitutional under the right circumstances, and that judicial scrutiny of affirmative action programs should not be “strict in theory and fatal in fact.”

Some institutions are already throwing in the towel. In early February the Massachusetts Institute of Technology succumbed to pressure from CEO and ACRI and dropped a three-decade-old minorities-only policy for two summer preparatory programs to build math and science skills. When MIT sought to defend the programs, CEO filed a complaint with the Office for Civil Rights at the Education Department, now headed by conservative Bush appointee Gerald Reynolds, a former CEO legal counsel.

Likewise, Princeton’s Woodrow Wilson School of Public and International Affairs recently capitulated to the same anti-affirmative-action groups that targeted MIT, abandoning a seventeen-year-old minority-only policy for its summer public service program. In early February the mayor of Boston, reportedly worried about the atmosphere of right-wing litigiousness, hastily axed a twenty-five-year-old program to encourage the awarding of city contracts to minority and women-owned businesses. Under pressure from black and Latino elected officials, he is now having second thoughts.

Smelling blood, right-wing organizations have targeted the diversity programs of at least twenty universities around the country, including those at Cornell and the University of Missouri, with an aggressive letter-writing campaign.

Some institutions may be similarly preparing to abandon diversity policies, but it does not have to be so. Challenges to these programs will not stop until the right wing has cut off every avenue of access for minorities and women. It is time for America’s mainstream institutions to draw the line and do the right thing, not only regarding the Michigan cases but also after they are decided.

The arguments advanced by corporations and politicians in their briefs backing the University of Michigan are eloquent. But unless they are matched with resources and muscle for the sustained political advocacy and legal defense of diversity programs, the trend toward the resegregation of American society that Harvard Project researchers have warned about will deepen.

As abortion-service providers across the country have discovered after three decades of intimidation by extremist groups, having a recognized constitutional right is one thing. Being able to exercise it is another. The leaders of America’s institutions must stand up for diversity when the going really gets tough. That’s now.

Alfred RossAlfred Ross is president of the Institute for Democracy Studies.

Lee CokorinosLee Cokorinos is the former research director of the Institute for Democracy Studies and the author of The Assault on Diversity: An Organized Challenge to Racial and Gender Justice (Rowman & Littlefield, 2003). He is now founder and principal at Democracy Strategies LLC and can be reached at lee@democracystrategies.com.